In the beginning, all churches were unincorporated associations. The demands of modern accounting and property ownership, including liability risk management, pressed the unincorporated association to incorporate. However, in order to successfully incorporate, the unincorporated association has to follow steps outlined in the law of the state of residence. Even done amicably, such a transition can be challenging to volunteer led churches and pastors that do not also happen to be lawyers. In the middle of a church split, the transaction cannot be completed in most states.
An example of this is Church of the First Born of Tennessee, Inc. v Slagle, Slip Op. (Tenn. App. 2017). Church of the First Born outlived two generations of founders and desperately needed a new organizational structure that would ensure smooth leadership transitions going forward. This was especially true after the church grew into a multi-campus church and established a church school sited on what probably was millions of dollars of real estate.
Before such an amicable restructuring took place, a church split arose. The Court was unsure whether the split arose due to the financial pressures of supporting the church school or whether it was a doctrinal issue that arose because after the founders passed away, new leadership did not command the unanimity that the founders earned but surrendered upon their passing. While the dispute roared around those issues, indeed, those issues were not terribly critical to the resolution.
The Plaintiff was a newly minted church corporation that tried to step into ownership of some of the church assets on behalf of one side of the split. But, because asset ownership transfers are impossible unless all of the members of the unincorporated association have notice and vote to approve the transaction, the mere incorporation by one group in the split did not have the effect of transferring assets. The Plaintiff was, therefore, without standing to bring any claim at all and the case was dismissed.
Church leaders have a duty to recognize their own mortality and plan for leadership succession in a fair process. While many church leaders bristle at the idea of church bylaws or other written policies adopted as the governing rule of the church by a vote of the members, every church that does not have them and does not periodically review and update them increases the risk that a rift in the membership will shatter the peace of the church or in fact doom the church. A church that can own millions of dollars of property should be able to hire a competent lawyer to lead the church to adopt bylaws or written rules. Incorporation is a low cost and relatively well understood first step and makes asset management much easier.